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Oct 10, 2016

Refugee Appeals: Less Deference is a positive step for Refugee Claimants

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refugee appeals

The Federal Court of Appeal’s decision in R. v. Huruglica 2016 FCA 93 clarified the relationship between the Refugee Appeal Division (RAD) and the Refugee Protection Division (RPD). The RPD is a division of the Immigration and Refugee Board of Canada that hears refugee claims for protection and decides whether to accept them. The RAD, formed in 2012, considers appeals against RPD decisions. For the most part, the RAD is a written appeal as the Panel Member bases its decision on the documents provided by the parties during the RPD hearing. [1]


In Huruglica, Justice Gauthier said that the RAD is to apply a correctness standard when reviewing decisions of the RPD that do not raise issues of credibility of oral evidence, as there may be cases where the RPD enjoys a meaningful advantage over the RAD in making these determinations. Justice Gauthier cautioned that he did not want to “pigeon-hole” the extent of deference owed in each case. Instead, the RAD is to determine whether the RPD truly benefited from an advantageous position on a case-by-case basis. The RAD is to carefully consider the RPD decision and carry out its own analysis of the record to determine whether the RPD has erred. According to the Court, the RAD is essentially a safety net that would catch all the errors, either factual or legal, made by the RPD. Once the RAD reviews the RPD decision, it would either confirm the RPD decision, substitute its own, or refer the decision back to the RPD with specific instructions.


The Huruglica decision may be a welcome development for claimants who have been unsuccessful at their RPD hearing. Since the formation of the Refugee Appeal Division in 2012, many applicants have struggled with the amount of deference given to the RPD. Several RAD decisions have stated the RPD’s credibility determinations should be afforded significant weight because this is the ‘heartland of its expertise’. However, this view has been increasingly scrutinized by the Federal Court of Canada. Recent studies have also put into question the accuracy of refugee adjudicator credibility findings. [2] Cultural differences, language barriers and the high-pressure nature of the hearing make it difficult for decision makers to accurately determine a claimant’s credibility.[3] While the caselaw continues to evolve, there seems to be room for optimism for applicants who have received a negative decision at the RPD.


[2] (see Michael Kagan, Is Truth in the Eye of the Beholder? Objective Credibility Assessment in Refugee Status Determination, 17 Geo. Immigr. L.J. 367 (Spring, 2003).

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